JAMES O’NEILL: Requiem for a democracy

The Australian Security agencies have asked again for further powers to enable them to prevent terrorist attacks. Among the requests made are for extended detention powers, increasing the time a “terror suspect” can be detained without charge from 14 to 28 days.

A meeting shortly after the announcement between the Federal government and the Premiers of the six States and two Territories rapidly agreed to the request. The Victorian Premier was quoted in local media. “We are going to have to curtail the rights and freedoms of a small number of people in order to keep the vast majority of Australians safe” he said.

The Prime Minister solemnly intoned, not for the first time, that the government’s primary duty is to keep Australians safe. This claim has a long history. Cicero, the 1st Century Roman politician and writer is attributed with the maxim “salus populi suprema est lex” (the safety of the people is the supreme law). It has been repeated in various forms ever since, up to and including Turnbull.

John Selden, the 16th-17th Century English jurist was correct in observing, “there is not anything in the world more abused than this sentence.”

Australian politicians would be better to prefer the view attributed to the American statesman Benjamin Franklin when he observed “he who would put security before liberty deserves neither.” It is a sentiment seldom if ever uttered in Australia, and certainly not by any politician.

In the rush to further restrict what few protections that exist for Australians a number of questions are never asked. The onslaught of restrictive legislation began following the events of 11 September 2001 (“9/11”) in the United States. On that seminal day, 19 alleged Muslim hijackers were said to have hijacked four aeroplanes, crashing three of them into buildings and a fourth into a Pennsylvania field.

That event sparked at least two wars (Afghanistan and Iraq both ongoing) and a tsunami of legislation eroding fundamental rights previously enjoyed in most societies founded on notions of individual rights and the rule of law. More than 16 years later, 9/11 is still quoted as the reason for the “war on terror” that can only be pursued through progressively harsher legislative measures and it would seem by attacking more and more countries.

Those who question the official government conspiracy theory about 9/11, which is what by definition it is, are denounced as “conspiracy theorists” or worse. That has had an inhibiting effect on rational debate about the events of 9/11, notwithstanding the fact that the official conspiracy theory itself is riddled with inconsistencies, illogicalities, unlikely coincidences and downright scientific impossibilities. By refusing to allow rational debate about 9/11 a person is by extension precluded from questioning the whole rationale for the “war on terror”.

The war on terror that has raged since 9/11 has had substantive consequences quite apart from the destruction of the societies attacked for their alleged involvement in the events of 9/11. Instead of treating terrorist plots or acts within the rubric of the criminal law, which is where they properly belong, they are instead regarded as acts of war. Even under this strained extension, the law of war itself has not been properly applied.

One illustration of this was the creation of a curious legal fiction of “unlawful enemy combatants”, designed explicitly to deny its participants the protections of, for example, the Geneva Conventions. The accused are held in arbitrary detention, deprived of the right to know the details of their alleged transgressions, denied the right to have the validity of the allegations determined by an impartial Judge, and denied the right to a fair trial. The experiences of Australian citizens David Hicks and Mamdoub Habib should have inspired Australian government intervention, but their indifference remains an enduring disgrace.

In the United States, where the “war on terror” had its genesis, those who were its victims have waged some important battles in the Courts. In Rasul v Bush; Hamdan v Rumsfeld; and Boumedienne v Bush the full power of the US government was taken on and defeated. In the last of those three cases, Justice Kennedy, citing Alexander Hamilton, noted, “the practice of arbitrary imprisonment has been in all ages a formidable instrument of tyranny.”

The fundamental difference between those three litigants and anyone falling foul of Australia’s draconian anti-terror legislation is that they could all point to the protection afforded litigants of the first ten amendments to the US constitution, popularly referred to as the Bill of Rights.

Australia is unique among the western nations in not having a Bill or Charter of Rights. Even where, as is the case with Australia, it regularly signs up to international instruments such as the International Covenant on Civil and Political Rights (1976) (ICCPR) those rights are not binding in Australia unless incorporated into Australian legislation.

The ICCPR has not been incorporated into Australian law and therefore fundamental rights, such as those in Article 9 of the ICCPR can be, and are, regularly flouted. Those mistreated because of the breaches of Article 9 which are inherent in Australia’s anti-terror legislation have no legal redress, itself a fundamental principle of human rights law.

I referred above to the tsunami of anti-terror legislation and that is precisely what it has been. Since 9/11 Australia has passed more than 60 pieces of legislation of a restrictive nature, more than any other country. Many of those enactments have no place in a modern democratic society. Australia is not even one of the countries most at risk of a terrorist attack.. What few attacks that have been planned or carried out can in nearly all cases be traced to Australia’s involvement in a series of illegal wars (Afghanistan, Iraq, Syria) and support for the US attacks upon or threats against a range of other countries.

The common denominator of nearly all of these countries is that they are predominantly Muslim; have valuable resources coveted by western powers; are central to the geopolitical contest between Russia, China and the US; are remote from any truly Australian national interest; and wars against them are all justified on the basis of lies, obfuscations and violations of international law.

Even when the legislation proves ineffective, or counterproductive, as the British found with their control orders, which they promptly modified, Australia not only maintains them, but as in the case of detention without charge, actually increases the restrictions. The recently agreed to extension of detention without charge is a retrograde step in a framework of overwhelmingly oppressive and undemocratic legislation.

Although the initial onslaught occurred in the Howard government years, and particularly 2001-2008, when more than 40 Acts were passed violating fundamental human rights principles, the attack upon civil liberties has essentially been a bipartisan affair.

It is not as if there have not been reports, recommendations and examples of egregious abuses, as in the case of Mohammad Haneef, to spur successive governments into reversing the destruction of the human rights fabric. All have been ignored. That cannot be by chance and points to a fundamental flaw in the political character, regardless of party affiliation.

The International Commission of Jurists in their Berlin Declaration (28 August 2004) set out what should serve as a practical and conceptual framework for the balance between the safety and the rights of citizens. They said:

“In adopting measures aimed at suppressing acts of terrorism, States must adhere strictly to the rule of law, including the core principles of criminal and international law and the specific standards and obligations of international human rights law, refugee law and, where applicable, humanitarian law. These principles, standards and obligations define the boundaries of permissible and legitimate State action against terrorism. The odious nature of terrorist acts cannot serve as a basis or pretext for states to disregard their international obligations, in particular in the protection of fundamental human rights.”

In Australia’s case the only hope of achieving those objectives is through enacting an Australian Charter of Rights. Again, this has been proposed by reputable sources for many years. Successive governments have rejected this minimum step. No one has ever been able to explain how the Australian system is so superior to every other western nation that its citizens do not require a Charter of Rights. Every other western nation, albeit sometimes imperfectly, sees such a Charter as an essential component of its democratic armoury.

There is no rational basis for Australian politicians to not want their citizens to enjoy the rights enjoyed by every other western nation. One indication of the government’s attitude to basic human rights principles was demonstrated by a senior government Minister describing lawyers who defended asylum seekers (another area of enduring disgrace) as being “unaustralian.” While his comments were deplored, he not only retained his portfolio, but also seems likely to be given further expanded powers in precisely the areas where sensitive civil rights issues are most likely to arise.

There has therefore been a 16-year history of expanding powers in a manner that would not be out of place in a Police state. When this is accompanied by a series of egregious examples of abuse, the wilful disregarding of international instruments to which Australia is a party, the lack of any meaningful parliamentary opposition, and a systematic disregarding of critical UN reports of Australia’s human rights record, one has to doubt whether Australia still qualifies as a genuine democratic State.

The author is a Barrister at Law and may be contacted at joneill@qldbar.asn.au

2 Responses to JAMES O’NEILL: Requiem for a democracy

The New Zealand Bill of Rights Act 1990 sets it out clearly, and this is the legal situation where Australia should also be, instead of the insidious creep away from traditional civil rights at the lobbying of security forces:

23 Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment—

(a) shall be informed at the time of the arrest or detention of the reason for it; and

(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

(c) shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

(4) Everyone who is—

(a) arrested; or

(b) detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

totally agreed, James. The growing influence of security forces and security-language in our democratic institutions is a real worry. Security forces create discretionary powers at the top of the system which makes them feel good, but are a danger to the rest.

One key question is whether one can think of a security system without the discretion that currently comes with it and that is so detrimental. I am for instance thinking of having a counter-veiling institution of lawyers who make up their own rules as to the information protocols they should follow and who are invested to check up on the security forces. A bit like internal affairs, but then outsourced to parts of the legal profession. They should like that.

One can think of new institutions now, and have them as serious options after the next major scandal.

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